The State of Utah’s stunning admissions in last week’s oral argument before the Tenth Circuit Federal Court of Appeals and in briefs filed with the court make one thing abundantly clear: the state should drop its appeal of the federal district court’s ruling last December in favor of marriage equality. We’ll never forget the joy we felt seeing over a thousand LGBT couples dash to their local clerk’s offices in Salt Lake City and other Utah environs during the winter 2013 holiday season before the district court’s order was stayed. It’s time for those weddings to begin again.
The State of Utah put forth many baseless, unpersuasive, and convoluted arguments before the court. The one that perhaps struck us most was the State’s concession that children of same-sex parents would likely be better off if their parents were able to be married. But instead of caring for those children by embracing the right of LGBT couples to marry, the State callously said that their “principal concern” in the case is “the children of heterosexual parents,” leaving the children of LGBT parents in the dust. When questioned at oral argument, Utah’s counsel matter-of-factly wrote off the needs of children of same-sex couples by saying that laws involve “tradeoffs.” Not only does their argument suggest a remarkable lack of human empathy, but it is also unsound as a matter of law.
One thing that rings loud and clear from last summer’s United States Supreme Court decision in United States v. Windsor striking down section 3 of DOMA is that Justice Kennedy and the majority of the Supreme Court are very concerned about the effects that discriminatory marriage laws have on LGBT families, especially the children on LGBT parents. The Court held that DOMA “humiliates tens of thousands of children now being raised by same-sex couples….mak[ing] it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.” Further, the Court stated that “DOMA instructs … all persons with whom same-sex couples interact, including their own children, that their marriage is less worthy than the marriages of others.”
The saddest aspect of Utah’s legal argument is that it fails to recognize that marriage equality is not a zero-sum game. Ending the exclusion of LGBT couples from marriage robs no one else of their freedom to marry. Far from hurting anyone else, protecting and caring for kids of LGBT parents benefits everyone, not just LGBT families. Recognizing our common humanity lies at the heart of the marriage equality movement. In an attempt to appear compassionate, Utah wrote in its brief that it “respects and values [LGBT] citizens and their children as … equal before the law ….” If that’s the case, we urge the State of Utah to drop its appeal, end the marriage ban, and pass legislation to make full LGBT equality a reality in Utah.
John Lewis and Stuart Gaffney, together for nearly three decades, were plaintiffs in the California case for equal marriage rights decided by the California Supreme Court in 2008. They are leaders in the nationwide grassroots organization Marriage Equality USA.